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Spicer v. State

District Court of Appeal of Florida, Second District
Apr 5, 1993
615 So. 2d 725 (Fla. Dist. Ct. App. 1993)

Summary

holding that statute relating to robbery with a mask provides for an enhanced penalty but does not reclassify offense for purposes of habitual offender sentencing

Summary of this case from Watson v. State

Opinion

No. 92-00323.

February 10, 1993. Rehearing Denied April 5, 1993.

Appeal from the Circuit Court, Highlands County, Jesse C. Barber, Senior Associate Judge.

James Marion Moorman, Public Defender, and Julius Aulisio, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Susan D. Dunlevy, Asst. Atty. Gen., Tampa, for appellee.


Spicer and a codefendant were charged with armed robbery with a mask, trafficking in illegal drugs, and possession of a controlled substance. Spicer was convicted by a jury of the lesser offense of robbery with a mask and acquitted on the remaining charges. The state filed the required notice, seeking to have him sentenced as a habitual offender.

Robbery is a second-degree felony punishable by up to fifteen years' imprisonment. §§ 812.13(2)(c) and 775.082(3)(c), Fla. Stat. (1989). If, however, a mask was worn during the commission of the robbery, section 775.0845(4), Florida Statutes (1989), provides that the offense "shall be punishable as if it were a felony of the first degree," permitting a maximum penalty of thirty years.

In this case, the trial court interpreted section 775.0845(4) as requiring robbery with a mask to be reclassified as a first-degree felony. The court then used the first-degree conviction to sentence Spicer to life imprisonment under the habitual offender statute, section 775.084(4)(a)(1), Florida Statutes (1989). Spicer argues that although section 775.0845 is an enhanced penalty statute, it does not reclassify the degree of felony. Thus, he argues that he can be sentenced as a habitual offender only for a second-degree felony. We agree and reverse.

Penal statutes must be construed in terms of their literal meaning. State v. Jackson, 526 So.2d 58 (Fla. 1988). Words used by the legislature will not be expanded to broaden the definition of such statutes. Perkins v. State, 576 So.2d 1310 (Fla. 1991). If the legislature had intended section 775.0845 to reclassify offenses, it would have so stated, as it did in section 775.087, Florida Statutes (1989): "Possession or use of weapon; aggravated battery; felony reclassification;" and in section 775.0875, Florida Statutes (1989): "Unlawful taking, possession, or use of a law enforcement officer's firearm; crime reclassification; . . . ." (Emphasis added.) In fact, section 775.0875 is similar to the habitual offender statute, in that neither of the enhanced penalty statutes reclassify the degree of the offense. See Dominguez v. State, 461 So.2d 277 (Fla. 5th DCA 1985).

The trial court was therefore placed in an "either-or" situation. The court could use the enhanced penalty provisions of section 775.0845 and impose a guidelines sentence not exceeding thirty years or it could use the second-degree felony conviction to sentence Spicer as a habitual offender to a maximum of thirty years' imprisonment.

Accordingly, we vacate the sentence imposed. Since Spicer does not contend that he does not meet the criteria to be sentenced as a habitual offender and the trial court has elected to make that determination, on remand the trial court may resentence Spicer as a habitual offender to a maximum of thirty years.

Reversed and remanded.

CAMPBELL, A.C.J., and THREADGILL, J., concur.


Summaries of

Spicer v. State

District Court of Appeal of Florida, Second District
Apr 5, 1993
615 So. 2d 725 (Fla. Dist. Ct. App. 1993)

holding that statute relating to robbery with a mask provides for an enhanced penalty but does not reclassify offense for purposes of habitual offender sentencing

Summary of this case from Watson v. State

reversing reclassification of robbery with a mask conviction because “[p]enal statutes must be construed in terms of their literal meaning .... [I]f the legislature had intended section 775.0845 [Florida Statutes (1989) ] to reclassify offenses, it would have so stated ....”

Summary of this case from Pethtel v. State

In Spicer v. State, 615 So.2d 725 (Fla.2d DCA 1993), we held that the foregoing language operated to enhance penalties, not to reclassify crimes.

Summary of this case from Newman v. State

In Spicer v. State, 615 So.2d 725 (Fla. 2d DCA 1993), approved, Cabal v. State, 678 So.2d 315 (Fla. 1996), we construed the provisions of section 775.0845(4) and held that this statute could not be used to reclassify unarmed robbery from a second-degree felony to a first-degree felony for purposes of habitual felony offender sentencing.

Summary of this case from Solone v. State

In Spicer v. State, 615 So.2d 725 (Fla. 2d DCA 1993), the second district held that while the mask statute provides that certain second-degree felonies may be punishable as first-degree felonies, the statute does not act to reclassify the offense from a second-degree felony to a first-degree felony for purposes of habitual offender sentencing.

Summary of this case from Brown v. State

In Spicer, the court held that section 775.0845(4), Florida Statutes (1989) was an enhanced penalty statute and did not operate to reclassify the degree of felony.

Summary of this case from Archibald v. State
Case details for

Spicer v. State

Case Details

Full title:DOUGLAS WAYNE SPICER, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Second District

Date published: Apr 5, 1993

Citations

615 So. 2d 725 (Fla. Dist. Ct. App. 1993)

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